John R. Kuhnmuench, Jr., Human Recourses Director, Ozaukee
County,
121 West Main Street,
Port Washington, Wisconsin, appearing on behalf of the County.

ARBITRATION AWARD

Ozaukee County, hereinafter referred to as the County, and Ozaukee
County Lasata Care
Center Employees, Local 905, Labor Association of Wisconsin, Inc., hereinafter referred to
as
the Union, are parties to a collective bargaining agreement that provides for final and binding
arbitration of grievances. Pursuant to a request for arbitration, the Wisconsin Employment
Relations Commission appointed Edmond J. Bielarczyk, Jr., to arbitrate a dispute over the
discharge of an employee. Hearing on the matter was held in Cedarburg, Wisconsin on
March 15, 2004. A stenographic transcript of the proceedings was prepared and
received by the
Arbitrator on March 24, 2004. Post-hearing written arguments were received by the
Arbitrator
by April 27, 2004. Full consideration has been given to the evidence, testimony and
arguments
presented in rendering this Award.

6699

Page 2

MA-12424

ISSUE

During the course of the hearing the parties agreed on the
following
issue:

"Did the County have just cause to terminate the grievant on June 13,
2003?"

"If not, what is the
appropriate remedy?"

PERTINENT CONTRACTUAL
PROVISIONS

. . .

ARTICLE IV ­ MANAGEMENT
RIGHTS

Section 4.01
­ Management Rights: The Employer reserves and retains
solely and exclusively all of its common law, statutory and inherent rights to
manage its own affairs. Such rights include, but are not limited to, the
following:

A) To
determine the business practices of the County, and the Lasata
Care Center, including the purchase and utilization of equipment;

B) To
manage and direct the work force;

C) To
make job assignments;

D) To
determine the size and composition of the work force;

E) To
train or retrain employees;

F) To
determine and schedule the work to be performed by the work
force;

G) To
determine the competence and qualifications of employees;

H) To
establish and revise job descriptions;

I) To
establish the manner and method of selection of new employees;

Page 3

MA-12424

J) To determine the methods,
means and personnel, and the location where by which
the operations of the County and the Lasata Care Center are to be conducted;

K) To
take the necessary action in situations of emergency;

L) To
hire, promote and transfer employees;

M) To lay
off employees;

N) To
suspend, demote, discipline or discharge employees for just cause;

O) To
schedule and assign overtime;

P) To
make promotions and assignments to non-bargaining unit supervisory
positions;

Q) To
create new positions or departments; to introduce new or improved operations
and work practices, to terminate or modify existing positions, departments,
operations or work practices, and to consolidate existing positions, departments,
or operations;

R) To
issue and amend reasonable work rules, provided the Employer shall first
furnish each employee with a copy of same.

. . .

ARTICLE VII ­
DISCIPLINE AND RESIGNATION

Section
7.01 ­ Just Cause Definition: No employee who has completed his
or her initial probationary period, as provided in Section 5.01, will be
suspended, demoted, disciplined, or discharged except for just cause. Any
discipline of an employee shall be reduced to writing and a copy shall be given
to the employee, the local Association president and a copy shall be sent to the
Labor Association of Wisconsin.

. . .

Page 4

MA-12424

PERTINENT WORK RULES (Employee
Handbook)

RULES OF CONDUCT

Whenever and wherever people work together, certain
standards of reasonable conduct need
to be established in order to maintain an orderly and efficient work atmosphere.

Corrective discipline is not
intended to inflict punishment. Lasata wants to take measures,
which are designed to correct whatever problem the employee has, and to make the employee
aware of the importance of abiding by our operating policies and procedures. In some cases,
it
may be necessary to dismiss an employee because of the seriousness or continuation of an
offense.

The following types of conduct
are unacceptable in our workplace. It is not possible to list
every conceivable infraction. Lasata can amend these guidelines within its total
discretion.

. . .

Use or possession of drugs
or alcoholic beverages on company premises or off
company premises while on duty.

. . .

Possession of weapons or
firearms on company premises.

BACKGROUND

The County operates a health care center in Cedarburg, Wisconsin
whereat it employed
Patricia Rady, hereinafter referred to as the grievant, as a Certified Nursing Assistant (CNA)
for approximately two years. On May 24, 2003 the grievant completed her work shift at
11:00 p.m., and, with CNA Natalie Brumfield, went to Health Care Center's parking
lot, got into
their cars, and proceeded to go to Milwaukee. Brumfield, in her vehicle, followed the
grievant's
vehicle and noticed the grievant was weaving in the road and that the grievant was driving
too
fast. Brumfield attempted to attract the grievant's attention by flashing her lights but was
unsuccessful. In Mequon, Wisconsin, the grievant's driving was noticed by Police Officer
Mark
Riley. Riley followed the grievant's vehicle and noticed she was driving in a jerky fashion,
drifting over the center line and when she approached a red light, thought she wasn't going
to
stop, when the grievant braked and came to a stop, stopping with her vehicle in the center of
the

Page 5

MA-12424

crosswalk. When the light turned green, Riley continued to follow the
grievant and activated his
squad car's emergency lights.

Riley observed the vehicle's brake lights come on and then the vehicle
accelerated.

The grievant's vehicle continued to weave in its lane and when it crossed
the center lane into the
on-coming lane he activated the squad car's siren. The grievant then stopped her vehicle.
At the
hearing, Riley testified this was at approximately 11:23 p.m. (Tr. p. 7) Brumfield continued
around the block and when she returned to the grievant's stopped vehicle, there were three
squad
cars there.

When Riley approached the grievant's vehicle he noticed she was alone
in it. He advised
the grievant of why she was being stopped. Riley observed the grievant's eyes were
bloodshot,
smelled an odor of intoxicants on her breath, and that her speech was slurred. The grievant
then
failed three field sobriety tests and tested at .173% on a field breathalyzer (field breathalyzer
results are not admissible in court). The grievant was then placed under arrest at 11:40 p.m.
and
her vehicle was searched. The search resulted in finding a Skol vodka container with a straw
in
it and a plastic sippy cup that was empty but smelled of alcohol.

At the Mequon Police Department at 12:06 a.m. the grievant
voluntarily submitted to an
evidentiary chemical test of her breath. At 12:15 a.m. she tested at .18%. Riley also
testified
that the grievant informed him she had gone into Cedarburg on her lunch break and had a
few
drinks (Tr. p. 18) At 12:55 a.m. the grievant was released to Brumfield and they both went
to
Brumfield's home.

On May 28, 2003 Lasata Care Center Administrator Ralph Luedtke
received a telephone
call informing him of the grievant's arrest at 11:40 p.m. on May 24, 2004. Luedtke
concluded
that given the timing of the arrest of the grievant and the length of time taken to get to that
level
of intoxication that the grievant had been drinking while on duty. Luedtke then decided to
investigate the matter.

Luedtke first reviewed the grievant's personnel file. The grievant had
received oral
warnings on February 2, 2002 (Safety violation), June 9, 2003 (Safety violation), May 19,
2003
(Unauthorized break), and a written reprimand on May 28, 2003 (Unauthorized break on
May 23,
2003 and Safety violation on May 23, 2003). Luedtke then met with Registered Nurse
Nancy
Ritter. Ritter informed Luedtke that the grievant had exhibited a change in behavior over the
last several weeks and that the grievant would not admit she was doing anything
wrong.

Luedtke and Ritter then met with Stephanie Eron, D.O.N., the grievant
and Union
Steward Audrey Renner. The grievant was given the May 28, 2003 written reprimand and
they
discussed her recent behavior. Ritter left and County Human Resource Director John
Kuhnmuench joined the meeting. The grievant was asked if she had been drinking at work
on

Page 6

MA-12424

May 24, 2004 and if drinking at work was the reason she was having job
performance problems.
The grievant denied ever drinking at work and stated she had gulped vodka in the parking lot
before leaving and, given she is a small woman, was the reason why the alcohol metabolized
so
quickly to make her drunk in twenty (20) minutes. The grievant also claimed she had not
had a
drink in about twenty (20) years and claimed she was not an alcoholic.

Thereafter, Kuhnmuench asked to search her locker and her vehicle.
The grievant
allowed her locker, purse and water bottle to be checked for alcohol but refused to allow her
vehicle to be searched. Luedtke then informed the grievant she was suspended with pay
pending
the completion of the investigation.

CNA Heather North was interviewed and informed the County she had
never seen the
grievant drink on or off the job. Registered Nurse Adrianne Luft was interviewed and
informed
the County she did not smell alcohol on the Grievant's breath on May 24, 2004. CNA
Natalie
Brumfield was interviewed, informed the County she did not see the grievant consume any
alcohol, described the events leading up to the grievant's arrest, and informed the County she
did not know how the grievant got drunk so quickly. CNA Mary Thoreaux informed the
County
she had gone out once, at Thanksgiving, drinking with the grievant. CNA Jeanne Gebhart
informed the County she was aware the grievant goes out drinking and had urged the
grievant
to get some help.

Luedtke concluded the grievant, having admitted to drinking in the
Health Center's
parking lot, had violated the County's work rules. On June 5, 2003 Luedtke offered the
grievant
a Last Chance Agreement that provided for a thirty (30) day suspension with a requirement
the
grievant contact the County's Employee Assistance Program (EAP) Counselor or a
professional
of her choice to seek counseling. This was declined by the grievant. The County then
offered
to reduce the suspension to fifteen (15) days. This was also declined by the grievant. The
Union
then offered to have the grievant voluntarily resign; however, the grievant also declined this.
On
June 11, 2003 the County sent the grievant the following termination letter:

June 11, 2003

VIA Certified Mail

Ms. Patricia Rady

N5762 Thornton
Court

Fond du Lac, WI
54935

Page 7

MA-12424

Dear Mrs. Rady;

I have just been advised this
morning by your Union representative, Mr. Bauer,
that you no longer wish to have him represent you in the matter of your discipline for the
events of May 24, 2003. As you will recall, Lasata Care Center offered to impose a
30
day unpaid suspension in lieu of a termination as a result of your possession and
consumption of alcoholic beverages at work on May 24, 2003. That offer was
predicated
upon your entering into a last chance agreement, which among other things required you
to contact the County's EAP counselor or another professional to seek counseling. Since
you have refused to acknowledge responsibility for your actions of May 24, 2003, in fact,
you have denied doing anything at all that evening and have terminated your Union
representation, Lasata Care Center must now advise you that, based upon its
investigation of your actions of May 24, 2003, you are hereby terminated from
employment effective June 5, 2003 for your violations of County rules regarding
use or
possession of alcoholic beverages on County premises while on and off duty.

Your final pay check will be
forwarded to you next week.

Very truly yours,

John R. Kuhnmuench
/s/

John R. Kuhnmuench

Human Resources
Director

Ozaukee County

cc: Ralph Luedtke

Thomas Bauer

On June 20, 2003 the following memo was sent to Union
Representative Ben
Barth:

DATE: June 20, 2003

TO: Ben
Barth

FROM: Ralph G. Luedtke,
NHA Ralph /s/

Page 8

MA-12424

RE: GRIEVANCE 2003 ­ 11D (Rady
­ Step 1)

A complete investigation was done to review the
allegations that Pat Rady drank
alcohol on County property at Lasata and while on duty at Lasata. A copy of the
investigation was given to Pat Rady and to Thomas Bauer of LAW.

Pat was given the option of a
30-day unpaid suspension, which included seeking
counseling as part of a Last Chance Agreement or be terminated. She turned down the
suspension and last chance agreement.

Mr. Bauer then attempted a
compromise with John Kuhnmuench, Human Resources
Director, to lower the 30-day unpaid suspension to a 15-day unpaid suspension.

Mr. Bauer then offered to have
Pat voluntarily resign if we paid our her vacation and
floating holidays that were still unused. We agreed that this would be acceptable.

Mr. Bauer then told John
Kuhnmuench that Pat was not accepting any deals and he
was no longer representing her.

Therefore, John sent Pat the
termination notice dated June 11, 2003.

Grievance denied. Termination
was for cause.

Cc: Rosalie
Kraus

John
Kuhnmuench

Pat Rady

Wendy Stencel

Stephanie Eron

On July 22, 2003 Kuhnmuench sent the following letter to Barth
denying the
Grievance:

July 22, 2003

Mr. Benjamin Barth

Labor Consultant

Labor Association of Wisconsin,
Inc.

N116 W16033 Main
Street

Germantown, WI
53022

Page 9

MA-12424

Re: Grievance 2003-11D (Patricia Rady ­ Step
2)

Dear Ben:

After reviewing the
statements and facts presented, I will deny the grievance and let the
termination stand for possession and use/consumption of alcohol on County
property.

The employee admitted to
having possession of a bottle of vodka in her auto in the Lasata
parking lot and drinking in the Lasata lot after work.

The statement of her fellow
employee, Natalie Brumfield who observed her driving in an
erratic fashion after leaving work and the subsequent investigation and arrest of the employee
a short time after she left the premises, all confirm that she consumed enough alcohol on
County
premises to become so intoxicated as to operate her motor vehicle in an unsafe and reckless
manner which caused her to be arrested and charged with operating a motor vehicle under
the
influence of an intoxicant and possession of open intoxicants.

The employee has
previously received a written warning for failure to follow work rules
in May of 2003 on two separate occasions as well as an oral warning in May of 2003 for
violation
of a work rule.

The employee has refused to
accept responsibility for her actions, or seek help for her
drinking despite being offered an opportunity to enter into a last chance agreement by the
County
or an opportunity to resign.

Very truly yours,

John R. Kuhnmuench
/s/

John R. Kuhnmuench

Human Resources
Director

Ozaukee County

cc: Ralph Luedtke

Thereafter, the matter was processed to
arbitration in accord with the parties' grievance
procedure.

Page 10

MA-12424

The record also demonstrates that on two previous occasions employees
were disciplined
for similar conduct. The first, an employee came to work under the influence of alcohol,
was sent
home, arrived to work the next day under the influence and was sent home, given a Last
Chance
Agreement that included seeking counseling and a two (2) day suspension, came to work
again
under the influence of alcohol and was terminated. The second, an employee came to work
intoxicated, was sent home, given a Last Chance Agreement that included seeking counseling
and
a suspension, sought treatment and came back to work after receiving treatment.

POSITIONS OF THE PARTIES

County's Position

The County contends the grievant was properly terminated and that the
County had just
cause to terminate her for violation of rules by her possession and consumption of alcohol on
County premises.

The County points out it employs approximately two hundred and
twenty (220) employees
at the Health Care Center and has approximately two hundred (200) residents. The County
stresses patient care is of utmost importance and work rules prohibiting the consumption of
alcohol are necessary because of the safety of the residents. The County also points out
other
employees have been terminated for similar offences.

The County notes the Health Care Center is a State regulated nursing
home and is
required to maintain certain standards. The County argues its work rules are reasonable and
designed to ensure the standards are met and that employees are aware of their
responsibilities.
The County points out the grievant was aware of the work rules and was made aware of
them
when she commenced her employment. The County stresses the grievant was not disciplined
for
drinking on duty but was disciplined for possession and consumption of alcohol on County
premises. The County points out the grievant acknowledged she possessed and drank alcohol
in the County's parking lot.

The County points to the testimony of Officer Riley who stopped the
grievant only twenty-three (23) minutes after the completion of her shift. Riley observed the
grievant's driving, turned
on his emergency lights and had to use the vehicle's siren to get the grievant to stop her
vehicle.
Riley's observations of the grievant were that she was intoxicated and she failed a series of
field
sobriety tests. The preliminary breath test was a .17. Riley found vodka and a sippy cup
that
smelled of alcohol in her vehicle. At 12:15 a.m. she tested .188 and .191. She also
informed
Riley she had consumed alcohol during her lunch break at a bar in Cedarburg.

The County contends Officer Riley was a credible witness and that
there can be no
question the grievant was intoxicated on the night in question. The County also asserts the

Page 11

MA-12424

grievant acknowledged she had drank on County premises and had
possession of alcohol on
County premises. The County also asserts Officer Riley had no vested interest in the
proceedings and that the grievant informed him she had been drinking on her lunch hour.
The
County argues this supports an inference the grievant had been intoxicated while she was at
work
during the balance of her shift.

The County does note this information came to light at the arbitration
hearing and that the
decision to terminate the grievant was based on her admission that she had been drinking on
County premises and had possession of alcohol on County premises. The County stresses it
is
not charging the grievant with drinking while on duty, even though the physical facts suggest
otherwise. The County does argue it is physically impossible for her body to have absorbed
the
amount of alcohol she claimed to have drank in the parking lot in less than twenty (20)
minutes
and to have the intoximeter register the alcohol level in that time frame.

The County argues the grievant was forewarned of the need to abstain
from misbehavior
as expressly counseled in the employee handbook. The County argues the rule against
possession and consumption of alcohol on County premises is necessary for the orderly,
efficient
and safe operation of the County's business and conduct the County can properly expect of
an
employee. The County also argues it made a reasonable inquiry into whether the grievant
violated or disobeyed a rule or order of management. The County contends it made a fair
and
objective investigation and during this investigation it obtained substantial evidence that the
grievant was guilty.

The County also contends it has applied its rules, orders and penalties
even handedly and
without discrimination. The County points out that in the two previous similar type incidents
the
employees involved agreed to Last Chance Agreements that included seeking counseling.
Herein, the County argues, the grievant was offered a Last Chance Agreement that included
seeking counseling and the grievant declined the offer. The County asserts the grievant
declined
the opportunity to modify her behavior and seek counseling and therefore she was
terminated.
The County also points out there was an increase in the grievant's discipline prior to her
termination.

The County concludes that the degree of discipline was reasonably
related to the
seriousness of the grievant's offense and her work record. The County argues the grievant
has
failed to show any insight into the seriousness of her offense and continues to resist any
implication that she in any way was at fault. The County points out the grievant, at the
hearing,
changed her story to claim she didn't commence drinking in her vehicle until after she left
the
County's premises and that she was also on medication. However, the County points out she
failed to provide any information that demonstrated she was on medication on May 24, 2003,
nor
did she inform Officer Riley when she was arrested that she was on medication, nor did she
inform Luedtke during his investigation that she was on medication.

Page 12

MA-12424

The County would have the undersigned deny the
grievance.

Union's Position

The Union contends the County has failed to demonstrate the grievant
used or
possessed alcoholic beverages on the County's premises while on duty on May 24, 2003.
The
Union points out that Luedtke testified no one he interviewed said the grievant drank any
alcohol while on duty. (Tr. pp. 42-43) The Union argues that the only way Luedtke can
conclude the grievant was drinking while on duty was the time of her arrest, 11:40 p.m. on
May 24, 2003. The Union contends the County has failed to demonstrate the grievant was
drinking while on duty because it can provide no witnesses that saw her consume any alcohol
on that day, the grievant interacted with residents, employees and supervisors and no one
reported to a supervisor the grievant had been drinking. The Union, acknowledging the
grievant had informed Luedtke she had been drinking in the parking lot, argues that the
grievant had been taken by surprise by the discussion of the Operating While Intoxicated
(OWI) incident. (Tr. p. 74) The Union also points to Brittinger's testimony that she believed
the grievant was caught off guard when asked about the OWI arrest and that the grievant was
surprised and upset about the question. (Tr. p. 65)

The Union argues that the County has not proven the grievant
consumed alcohol
anywhere near the Health Care Center's premises and asserts the grievant took her first drink
while she was on the roadway. The Union also argues that the grievant could have
consumed
enough alcohol between 11:05 p.m. when she left the Health Care Center's premises to
11:40
p.m. when she produced a .18 Intoxilyzer test. The Union argues the grievant's testimony,
that
she drank twenty-five percent (25%) of the bottle of Vodka after pulling out of the parking
lot,
a period of eighteen (18) minutes elapsed prior to her being pulled over at 11:23 p.m. by
Officer
Riley. The Union points out it was not until 12:15 a.m. that the Intoximeter test was given,
a total
of one (1) hour and five (5) minutes had elapsed since she began drinking. The Union points
out
Officer Riley acknowledged that if the grievant had drank an amount of alcohol equivalent to
five
(5) shots in a fifteen minute period, it was possible for her to test at .18 at 12:15 a.m. (Tr.
p. 33)

The Union also argues Officer Riley's testimony that the grievant
informed him she had
been drinking in Cedarburg during her lunch period (Tr. p. 18) is not supported by his
official
follow-up report or supported by any other witnesses. The Union concludes this information
was
therefore a complete fabrication and should not be allowed by the Arbitrator.

The Union also argues the bottle of vodka in the grievant's vehicle does
not constitute
possession or consumption on the County's premises. The Union points out the vodka was
in the
grievant's vehicle and remained in her vehicle at all times. The Union argues that the
County's
work rule prohibits possession and consumption of alcohol on the County's premises while
on

Page 13

MA-12424

duty. The Union argues there is only a violation if the alcohol is taken out
of the vehicle and into
the building (which she did not) and/or if it is consumed while sitting in the vehicle in the
parking
lot (which she did not).

The Union also argues the decision to terminate the grievant is not
consistent with
discipline meted out to other employees. The Union points out in one instance an employee
reported for duty twice while intoxicated and only received a two day suspension, and, it was
not
until she reported a third time to work while intoxicated that she was terminated. The Union
points out in the second instance there is no documentation to support the County's claim the
employee ever completed the EAP program prior to her leaving the County's employ. The
Union
stresses that in the instant matter the County first offered a thirty (30) day suspension and a
Last
Chance Agreement. The Union argues that when the grievant challenged the reasonableness
of
the discipline the County terminated the grievant. The Union concludes the decision to
terminate
the grievant in the instant case is inconsistent with other disciplinary actions of employees
involved in allegations of possession and/or consumption of alcoholic beverages. The Union
argues the grievant's discipline is extreme when compared to the discipline of other
employees
who were actually intoxicated on the County's premises and therefore the County's actions
are
unreasonable and lack just cause.

The Union would have the Arbitrator reinstate the grievant with full
back pay and benefits
and direct the County to expunge her personnel files of all documentation related to the
grievant's termination on June 5, 2003.

DISCUSSION

The record demonstrates there is no dispute the grievant had a
container of alcohol in her
vehicle while it was on the County's premises. The County's Rules of Conduct specifically
provide that use or possession of alcohol on County premises is grounds for discipline.
Contrary
to the Union's assertions, this does not mean the employee has to be on duty when the
infraction
occurs. While the grievant may have kept the alcohol in her vehicle, her vehicle was on
County
property. Thus she violated the County's rules and the County clearly had grounds to
discipline
the grievant. The Union, in effect, has argued that since the grievant did not consume the
alcohol
on County premises the rule, in and of itself, is unreasonable. However, given the nature of
the
County's business, health care, the Arbitrator finds the rule to be consistent with the Health
Care
Center's mission to provide safe and efficient care of its residents. Given the grievant was
aware
of the County's Rules of Conduct the grievant was aware that when she placed the alcohol in
her
vehicle and parked it in the Health Care Center's parking lot she was aware she was
violating
the County's rules of conduct.

The Union did raise the example in its brief that this would be no
different than a hunter,
preparing to leave on a hunting trip directly from work, placed their hunting rifle in their
vehicle.
However, the County's Rules of Conduct also prohibit the bringing of weapons onto County

Page 14

MA-12424

premises and if a hunter did so they would be violating the County's work
rules. Thus, the fact
the alcohol was in the grievant's car does not absolve the grievant of the fact she brought
alcohol
onto the County's premises.

The record also demonstrates that Luedtke interviewed Brumfield and
Brumfield
informed him she noticed the grievant was driving erratically immediately upon leaving the
Health Care Center's parking lot. The grievant was then observed by Officer Riley as
driving
erratically, in fact she failed to notice his emergency lights and did not stop until he turned
on the
squad car's siren. She was pulled over at 11:23 p.m., just twenty-three (23) minutes after
she
concluded her shift. Given Officer Riley's testimony of his observance of the grievant's
driving,
it is clear to the Arbitrator the grievant was already under the influence of the alcohol she
had
consumed when he first observed her driving her vehicle and this was less than twenty
minutes
(20) after she left the Health Care Center's parking lot. Thus the Arbitrator finds no merit
in
the grievant's claim she didn't commence drinking until after she drove out of the parking lot
or
the Union's argument that because the Intoxilyzer test was done until 12:15 a.m. that there
was
a possibility the grievant did not commence consuming alcohol until she had left the parking
lot.

The Arbitrator notes here the grievant acknowledged to the County she
had consumed
alcohol in the parking lot. Given the grievant's almost immediate driving behavior the
Arbitrator
finds it more reasonable to conclude the grievant, at a minimum consumed alcohol in the
parking
lot. Particularly because both Brumfield and Officer Riley noted her problems driving her
vehicle
prior to 11:23 p.m.

The Arbitrator also finds the instant matter is distinguishable from the
two previous
actions concerning employees and alcohol consumption. In those instances the employees
reported to work under the influence. In this instance the employee brought the alcohol to
the
County's premises and consumed the alcohol while on the County's premises. There is a
difference between the acts of an employee who, under the influence, wrongly believing they
are
still able to carry out their duties and report to work and the actions of an employee,
knowingly
violates the employer's work rules by bringing alcohol onto the employer's premises and
then
consuming the alcohol while on the employer's premises. The Arbitrator therefore finds no
merit
in the Union argument that the discipline in the instant matter is extreme when compared to
other
disciplinary actions involving possession and/or consumption of alcohol. The instant matter
involves possession and consumption on the County's premises. Neither of the previous two
matters involve possession or consumption of alcohol on the County's premises.

The Arbitrator also finds that when the grievant, by her actions,
refused to participate in
the EAP Program, the County had just cause to terminate the grievant's employment. As
noted
above, the Health Care Center is charged with the care and safety of its residents. It is
therefore
required to ensure that employees can provide this care and safety. Once the County became
aware of the OWI incident its actions to ensure the care and safety of residents must be
within

Page 15

MA-12424

reason. To require the grievant to participate in an EAP Program is a
reasonable response given
the grievant's recent performance problems and her acknowledgement she consumed alcohol
in
the Health Care Center's parking lot. Had the grievant informed the County she would
participate in the EAP Program or would consult with a professional a different result could
be
reached. There is also no evidence the County has ever allowed any employee who allegedly
reported to work under the influence or who consumed alcohol on the County's premises to
continue working without requiring the employee to participate in an EAP Program.
Therefore,
the Arbitrator finds the County had just cause to offer the grievant a fifteen (15) day
suspension
and a Last Chance Agreement that included she participate in the County's EAP Program or
consult with a professional. When the grievant declined the discipline she, in effect, also
declined
to participate in the County's EAP Program or to consult with a professional. Absent the
grievant's willingness to participate in the EAP Program or to consult with a professional,
and
given the Health Care Center's mission, the Arbitrator finds that the County had just cause to
terminate the grievant's employment.

Therefore, based upon the above and foregoing and the testimony,
evidence and
arguments presented the Arbitrator finds the County had just cause to terminate the grievant's
employment. The grievance is denied.